Stevens-Rucker v. Frenz Petition for Writ of Certiorari
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November 21, 2018

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Brief Collection, LDF Court Filings. Bratcher v. Akron Area Board of Realtors Supplemental Brief for the United States as Amicus Curiae, 1967. 49399732-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/40ea477b-7d49-4430-8516-857cf7dc825c/bratcher-v-akron-area-board-of-realtors-supplemental-brief-for-the-united-states-as-amicus-curiae. Accessed July 30, 2025.
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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 17,113 MERCER BRATCHER, ET AL., Plaintiffs-Appallants, v. THE AKRON AREA BOARD OF REALTORS, ET AL., Dafandants-Appalleas. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DONALD F. TURNER, Assistant Attornay General, STEPHEN G. BREYER, Attornay. Daparftnt of justice, Washington, D. C., 20530. I N D E X Page Interest of the United States .................................... 1 Supplemental brief for the United States as amicus curiae . . . . 2 CITATIONS Cases: Apex Hosiery Co. v. Leader, 310 U.S. 469 ................... 6 Atlantic City Electric Co. v. General Electric Co.. 226 F. Supp. 5 9 .............................................. 5 Bookout v. Shine Chain Theaters, Inc.. 253 F. 2d 292 . . . . 9 Brown Shoe Co. v. United States. 370 U.S. 294 ............. 6 Centonni v. T. Smith & Son. 216 F. Supp. 330 ............... 9 Chattanooga Foundry & Pipe Works v. City of Atlanta. 203 U.S. 390 ..................................................... 4, 7 Comaonwealth Edison v. AllIs-Chalmers Mfg. Co. 335 F. 2d 203 7, 8 Conference of Studio Unions v. Loew's Inc.. 193 F. 2d 51 . . 9 Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 ..................................................... 10 Feddersen Motors, Inc, v. Ward. 180 F. 2d 5 1 9 ............. 6 Georgia v. Evans. 316 U.S. 1 5 9 .............................. 4, 7 Gomberg v. Midvale Co.. 157 F. Supp. 1 3 2 ................... 9 Hanover Shoe Inc. v. United Shoe Machinery Corp.. 185 F. Supp. 826, affirmed 281 F. 2d 481, cert, denied 364 U.S. 9 0 1 ..................................................... 7, 8 Leh v. General Petroleum Corp.. 382 U.S. 5 4 ............... 5 Louisiana Petroleum Retail Dealers, Inc, v. Texas Co.. 148 F. Supp. 334 .......................................... 3 Mandeville Is1And Farms, Inc, v. American Crystal Sugar Co.. 334 U.S. 2 1 9 .......................................... 4, 7 Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co.. 381 U.S. 3 1 1 ............................ 5 Nagler v. Admiral Corp.. 248 F. 2d 3 1 9 ...................... 11 Noerr Motor Freight. Inc, v. Eastern Railroad Presidents Conference. 113 F. Supp. 737 ......................... 11 Package Closure Corp. v. Sealright Co.. 141 F. 2d 972 . . . 11 Radovich v. National Football League. 352 U.S. 445 ........ 5, 10 Cases [Continued]: Page Rossi v. McCloskey & Co., 149 F. Supp. 638 ................. 9 Schulman v. Burlington Industries, Inc., 255 F. Supp. 847 . 9, 10 Snow Crest Beverages. Inc, v. Recipe Foods. Inc.. 147 F. Supp. 907 ........................................................ 9 South Carolina Council of Milk Producers. Inc, v. Newton, 360 F. 2d 4 1 4 ................................................. 9 State of Illinois v. Brunswick Corp., 32 F.R.D. 453 . . . . 8 State of Missouri v. Stupp Bros. Bridge & Iron Co., 248 F. Supp. 1 6 9 ................................................. 7 Streiffer v. Seafarers Seachest Corp., 162 F. Supp. 602 . . 7 Thomsen v. Kayser, 243 U.S. 6 6 .................................. 4, 7 United States v. Borden Co., 347 U.S. 5 1 4 ...................... 3, 8 Statutes: Clayton Act, 15 U.S.C. 15, et seq.j Section 4 ............................................... 3, 5, 6 Section 1 6 ............................................ 2, 5, 6 Miscellaneous: Clark: "The Treble Damage Bonanza: New Doctrines of Damages in Private Antitrust Suits," 52 Mich. L. Rev. 363 . . . 8 Note, 64 Columb. L. Rev. 570 ( 1 9 6 4 ) ....................... 6 u n i t e d sta tes c o u r t of a p p eals FOR THE SIXTH CIRCUIT Ho. 17,113 MERCER BRATCHER, ET AL., APPELLANTS v. THE AKRON AREA BOARD OF REALTORS, ET AL., APPELLEES ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES Th« United States wishes to file this suppleaental brief aaicus curias in support of appellants because it believes that the arguments aada In Defendants' Brief are erroneous and believes that their acceptance by this Court would interefere with efficient antitrust law enforceaant. _1/ "Defendants' Brief" refers to the Brief on Behalf of All Defendant Appellees Except First National Bank of Akron and Herberlch-Hall-Harter Inc. SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE Appellants have brought this suit on behalf of (1) Negroes wishing to buy or rent houses in white neighborhoods in Akron, (2) white hone owners who wish to sell or rent such houses to Negroes, and (3) Negro real estate dealers who wish to belong to the Akron Area Board of Realtors. The Conplaint charges that nambers of the defendant board of realtors have agreed not to sell houses in white neighborhoods to Negro custoawrs and to exclude Negro real estate dealers fron their board. Defendants claim that none of the three gremps of persons that plaintiffs represent has standing to sue. The Government submits that— to the contrary— all three groups have standing. Appellants are bringing this suit, which asks for an injunction, _2/ under Section 16 of the Clayton Act, 15 U.S.C. 26. They have standing to sue if they meet the requirements of that section by alleging facts which show (1) that they personally are "threatened" with "loss or damage," (2) that the activity threatening them violates the antitrust laws, and (3) that they are entitled to an injunction under traditional principles 2/ Section 16 provides in relevant part: "Any person . . . shall be entitled to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity . . . 15 U.S.C. 26. 2 of equity. United Stefa v. Borden Co., 347 U.S. 514, 518; Louisiana Petroleum Retail Dealer*, Inc. v. Texaa Co.. 148 F. Supp. 334, 336 (W.D. La. 1956). Defendants argue that the appellants must also satisfy 3/the requirements of Section 4 of the Clayton Act, 15 U.S.C. 15,— (applicable to treble damage plaintiffs) by alleging facts which show an injury to appellants "business or property." Appellants' complaint satisfies all these requirements. First, it charges that defendants' conspiracy threatened plaintiffs with personal "loss or damage" to their "business or property." It claims that defendants' conspiracy injures the business of plaintiff real estate brokers by denying them the "benefits of membership on the Board, thereby restraining [their] . . . sale and rental of real prop erty." (Complaint VII C). It claisw that the conspiracy— in preventing willing homeowners from selling property in white neighborhoods to Negroes— directly injures other Negro plaintiffs by artificially re stricting where they can live (Complaint VII, E, F), and it injures their property by forcing them "to pay more money than white persons for equivalent housing" (Complaint VII 6). And, it claims that the 3/ Section 4 provides in relevant part: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover three fold the damages by him sustained . . . ." 15 U.S.C. 15. 3 conspiracy injura* cha proparty of whita plaintiffs by dapriving than of "tha opportunity to sail or rant real proparty nora . . . profitably" (Conplaint VII H). A conspiracy that forcas a buyar to pay higher prices or a sailer to sell at lower prices injures tha "property" of tha buyar and of the sellar. Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390; Mandeville Island Farna, Inc, v. Anarlean Crystal Sugar Co.. 334 U.S. 219; Georgia v. Evans, 316 U.S. 159; Thonsen v. Kaysar, 243 U.S. 66. Second, the conplaint alleges facts which, if proved, would show that defendants' conspiracy violates tha antitrust laws. Our argunent to this affect is sat out in Brief for tha United States as Anicus Curiae, pp. 17-22, to which we refer the Court. Third, if defendants prove the facts alleged in their conplaint, they will have shown that they are entitled to an injunction under ordinary principles of equity, because they will have shown a substantial serious personal injury caused by defendants' illegal conduct, because an injunction will not prove inequitably burdensone to defendants, and, since the conspiracy is a continuing one and since damages for at least some of the injury that it causes plaintiffs may be hard to assess in monetary terms, because plaintiffs' remedy at law is inadequate. 4 We do not mean to suggest by this discussion that we accept defen dants' argument that plaintiffs in an action brought under Section 16 nust also sect Section 4's requirement of showing an injury to "business or property"--particularly if the words "business or property" are inter preted restrictively. While it may make sense in damage actions to limit the type of harm for which money can be recovered to injuries to business or property— injuries the dollar value of which can be more or less readily ascertained--there is no reason to limit the type of harm that will jus tify the issuance of an injunction to injuries that can be easily labeled with a price tag. Moreover, the fact of a strong Congressional policy favoring private antitrust actions, "one of the surest weapons for effec tive enforcement of the antitrust laws," Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S, 311, 318; Atlantic City Electric Co., v. General Electric Co., 226 F. Supp. 59, 71 (S.D.N.Y.1964), indicates that the courts should not engraft the restrictive requirements of Section 4 on to Section 16. In fact, the Supreme Court has expressly warned that the courts "should not add requirements to burden the private litigant beyond what is specifically set forth by Congress." Radovich v. National Football League, 352 U.S. 445, 454. And that Court has indicated that "niggardly construction[s]" of statutes governing treble damage actions should be avoided. Leh v. General Petroleum Corp., 382 U.S. 54, 59. See also Note, 5 64 Coluab. L. Rev., 570 (1964). But, in any event, wa submit that even if this Court dacidas that plaintiffs oust aaat Section 4'a requirements, thair complaint is adaquata, for it allagas facts suff icient to satisfy tha raquiraaants of both Section 16 and Section 4. Defendants argue, however, that Negroes wishing to buy or rent houses in Akron's white neighborhoods and white homeowners wishing to sell or rent those houses to Negroes lack standing to sue because they are ultimate consumers and are not "businessman-competitors" of defen dant real estate dealers (Defendants' Brief, pp. 33-35). But there is no requirement that private plaintiffs be either businessmen or competitors of antitrust defendants. Indeed, the antitrust laws, which primarily protect "competition, not competitors," Brown Shoe Co. v. United States, 370 U.S. 294, 344, are basically designed to prohibit practices "which tend to raise prices or otherwise take from buyers or consumers the advantages which accrue to them from free com petition in the markets." Feddersen Motors, Inc, v. Ward, 180 F. 2d 519, 521 (10th Cir. 1950). [Emphasis added.] The SupresM Court and lower courts have said over again that the Sherman Act protects "pur chasers and consumers," Apex Hosiery Co. v. Leader, 310 U.S. 469, 498; 6 Mandeville Island Farms Co. v. American Crystal Sugar Co., supra at 236; Streiffer v. Seafarers Seachest Corp., 162 F. Supp. 602, 607 (E.D. La. 1958). And, they have said this for good reason, as many hardcore antitrust violations, such as price fixing, will not hurt the conspirators' competitors (indeed they may be enriched) but will injure only consumers. Thus, it is not surprising that courts have uniformly held that the antitrust laws give a private right of action to purchasers of the goods and services involved in the restraint, whether those purchasers are businessmen, e .£., Thomsen v. Kayser, supra; Commonwealth Edison v. Allis-Chalmers Mfg. Co., 335 F. 2d 203 (7th Cir. 1964); Hanover Shoe, Inc, v. United Shoe Machinery Corp., 185 F. Supp. 826 (M.D. Pa.), affirmed 281 F. 2d 481 (3rd Cir.), cert, denied, 364 U.S. 901 (1960), or whether they are ultimate con sumers. Chattanooga Foundry & Pipe Works v. City of Atlanta, supra, (Holmes, J.: "[The City of Atlanta was] injured in its property, at least, if not in its business of furnishing water, by being led to pay more than the worth of the pipe" 203 U.S. at 396); Georgia v. Evans, supra (Frankfurter, J.: "[Congress would not want to have deprived] a State,as purchaser of commodities . . . , of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act" 316 U.S. at 162); State of Missouri v. Stupp Bros. Bridge & Iron Co., 248 F. Supp. 169 (W.D. Mo. 1965) ( state, as consumer of highways, sues highway equipment manufacturer); 7 Stitt of Illinois v» Brunswick Corp., 32 F.R.D. 453 (N.D. 111. 1963) (stats, raprasanting school districts, suas makers of blaachar seats sold to the school districts). Cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, at 831. See also Clark,"The Treble Damage Bonanza: New Doctrines of Damages in Private Antitrust Suits," 52 _ 4 / Mich. L. Rev., 363, 404 (1954). In fact, because of the importance of private actions as an aid to the enforcement of the antitrust laws, sea United States v. Borden Co., supra, courts have held that purchasers who are middleman may bring private actions against suppliers engaged in a price fixing con spiracy even though price increases were passed on to the ultimate consumer. E .£., Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., supra. It would be anomalous in the extresm to allow an antitrust remedy to these middlesmn while denying it to ultimate consumers when they bear the full brunt of an illegal conspiracy. Mora importantly, to deny ultimata consumers an antitrust remedy would deprive the government of any aid that private antitrust actions might give it in preventing regional conspiracies at a retail level— conspiracies that may not involve sufficient amounts of commerce to warrant investing the government's enforcement resources. In sum, we can find no good reason 4/ Suits by ultimata consumers are infrequent because normally the amount that could ba recovered would not justify the cost of suit. 8 for denylog plaintiff* in this casa standing to sue. Plaintiffs are direct customers for the services, provided by defendant real estate brokers. If, as plaintiffs claim, those services have been illegally restricted, the restriction has injured them directly Defendants also claim that the plaintiff real estate brokers lack standing to sue because "they are not the persons who were intended to be the victims of the alleged conspiracy" (Defendants' Brief, p. 40). 5/ The cases cited by defendants are not in point for they involve suits (1) by a supplier to a company injured by an antitrust violation (Snow Crest Beverages, Inc, v. Recip* Foods, Inc., 147 F. Supp. 907 (D. Mass. 1956)); (2) by employees of injured companies (Conference of Studio Unions v. Loew's. Inc.. 193 F. 2d 51 (9th Cir. 1951)); Centonni v. T. Smith & Son, 216 F. Supp. 330 (K.D. La. 1963); Rossi v. McCloskey & Co., 149 F. Supp. 638 (E.D. Pa. 1957); and (3) by shareholders of injured companies (Gomberg v. Midvale Co., 157 F. Supp. 132 (E.D. Pa. 1955)); Bookout v. Shine Chain Theaters, Inc., 253 F. 2d 292 (2d Cir. 1958). Even if the restrictive philosophy implicit in such opinions is correct--* question not entirely free from doubt, see South Carolina Council of Milk Producers, Inc, v. Newton, 360 F. 2d 414 (4th Cir. 1966); Schulman v. Burlington Industries, Inc., 255 F. Supp. 847 (S.D.N.Y. 1966), --they all involve plaintiffs who are not the direct victims of an anti trust conspiracy but whose injuries follow incidentially from the injury caused another. In each of these cases there exists a primary victim free to bring a private suit. In the instant case, however, Negroes seeking houses and white persons offering to sell them are the direct customers of the service allegedly restricted, and Negro real estate dealers are defendants' direct competitors. They are thus the direct and primary victims of any illegal restriction. If they cannot sue to obtain redress, no on* (except the government) can. [Note: Insofar as the "employee" cases cited above involve employees not working for an allegedly injured company, they may not state a cans* of action under the entitrust laws because of the labor exemp tion. See, Conference of Studio Union* v. Loew's Inc., supra.] 9 The complaint charges, however, that defendants "combined and conspired" to exclude "Negro real estate brokers from the advantages and opportun ities associated with membership in the defendant Board" (Complaint VI C 8). And, it adds that as a result of the conspiracy, "Negro real estate brokers have been denied benefits of membership on the Board thereby restraining the sale and rental of real properties by such brokers" (Conplaint, VIII C). It is difficult to see how that complaint could have alleged more clearly that plaintiff real estate brokers were intended direct victims of an illegal conspiracy. "It does not matter that defendants under the allegations may be conspiring to produce the restraints hurting plaintiffs only as part of an over-all scheme to reach still bigger game. A conspiracy in antitrust law, as elsewhere, may have a variety of objects and victims. Continental Ore Co. v. Union Carbide & Carbon Corp.. 370 U.S. 690, 698-699." Schulman v. Burlington Industries, Inc.. 255 F. Supp. 847, 851 (S.D.N.T. 1966). In fact, the Supreme Court has specifically held that a victim of an illegal boycott may bring a private antitrust action even though the ultimate purpose of the boycott may not have been to injure him. Radovich v . National Foot ball League, supra. Negro real estate brokers in this case qualify as antitrust plaintiffs, for whatever the ultimate purpose of the alleged illegal agraement to exclude them from the real estate board, such an agreement by its very nature, had to be aimed at them and had to harm them directly. See Schulman v. Burlington Industries. Inc., supra. 10 There is, thus, no nssd to give plaintiffs complaint that libaral latituda in intarpratation to which it is antitlad, sae Noerr Motor Freight, Inc, v. Kastarn Railroad Prasidants Confaranca, 113 F. Supp. 737, 742 (E.D. Penn. 1953); Package Closure Corp. v. Saalright Co., 141 F. 2d 972, 979 (2d Cir. 1944); Maglar v. Admiral Corp., 248 F. 2d 319 (2d Cir. 1957), in order to sae that it alleges that defendants' conspiracy in part directly aimed at and injured plaintiff real estate brokers. In sum, plaintiffs in this case represent direct customers for the services of real estate brokers— services which defendants allegedly illegally restrained. They also represent direct competitors. These two groups of people, custoswrs and competitors, are the most important of all those who are protected by the antitrust laws. They, if anyone, were meant by Congress to have a private right of action to prevent violations of the antitrust laws which injure them. And by giving such persons private rights of action, Congress has provided an important aid to the enforcement of the antitrust laws. Congress clearly did not intend to leave antitrust enforcement of the type envisaged here entirely in the hands of the Government. For these reasons, we submit, plaintiffs do not lack standing to sue. DONALD F. TURNER, Assistant Attorney General, STEPHEN G. BREYER, Attorney. MARCH 1967 CERTIFICATE OF SERVICE 1 hereby certify that 1 have this day caused the foregoing Supplemental Brief Amicus Curiae to be served upon all parties by causing a copy thereof to be mailed, postage prepaid and prop erly addressed, to each of the following: Jack Greenberg, Esquire 10 Columbus Circle New York, New York Sidney D. L. Jackson, Jr., Esquire Baker, Hostetler & Patterson 1965 Union Commerce Building Cleveland, Ohio Ivan L. Smith, Esquire O'Neil & Smith 16 South Broadway Akron, Ohio 44308 C. Blake McDowell, Jr., Esquire Brouse, McDowell, May, Bierce & Wortman 500 First National Tower Akron, Ohio 43308 V /K Stephen G. Breyer Attorney MARCH 1 0t 1967